‘Some General Principles 10. An operator’s licence can only be granted if the applicant satisfies the Department that the relevant requirements, set out in s. 12 of the 2010 Act as amended, have been met. [The expression Department is used in the legislation but for the purposes of the decisions required to be taken under the legislation it is the Head of the TRU who takes them]. The relevant requirements are now set out in Paragraph 17(5) of the Goods Vehicles (Qualifications of Operators) Regulations (Northern Ireland) 2012, (“the Qualifications Regulations), which substitutes a new s.12 and adds ss. 12A-12E to the 2010 Act. The Qualifications Regulations also contain important provisions in relation to Good Repute, Professional Competence and Transport Managers. 11. The grant of an operator’s licence does not mean that an operator can then proceed on the basis that the requirements that must be met in order to obtain a licence can thereafter be disregarded. In our view it is clear both from the terms of the 2010 Act and from Regulation 1071/2009 that these are continuing obligations, which an operator is expected to meet throughout the life of the licence. It is implicit in the terms of s. 23, which gives the Department power to revoke, suspend or curtail an operator’s licence, that this can take place at any time and for any reasonable cause, including matters covered by the requirements of s. 12 as amended. It is explicit in s. 24, which provides that a standard licence shall be revoked if at any time it appears that the licence-holder is no longer (i) of good repute, (ii) of appropriate financial standing or, (iii) professionally competent. The underlining, in each case is ours. First, we wish to stress that once it appears that the licence-holder is no longer of good repute, or of appropriate financial standing or professionally competent the licence must be revoked because the Act makes it clear that there is no room for any exercise of discretion. Second, the use of the expression ‘at any time’ makes the continuing nature of the obligations crystal clear. 12. The Tribunal has stated on many occasions that operator’s licensing is based on trust. Since it is impossible to police every operator and every vehicle at all times the Department in Northern Ireland, (and Traffic Commissioners in GB), must feel able to trust operators to comply with all relevant parts of the operator’s licensing regime. In addition other operators must be able to trust their competitors to comply, otherwise they will no longer compete on a level playing field. In our view this reflects the general public interest in ensuring that Heavy Goods Vehicles are properly maintained and safely driven. Unfair competition is against the public interest because it encourages operators to cut corners in order to remain in business. Cutting corners all too easily leads to compromising safe operation. 13. It is important that operators understand that if their actions cast doubt on whether they can be trusted to comply with the regulatory regime they are likely to be called to a Public Inquiry at which their fitness to hold an operator’s licence will be called into question. It will become clear, in due course, that fitness to hold an operator’s licence is an essential element of good repute. It is also important for operators to understand that the Head of the TRU is clearly alive to the old saying that: “actions speak louder than words”, (see paragraph 2(xxix) above). We agree that this is a helpful and appropriate approach. The attitude of an operator when something goes wrong can be very instructive. Some recognise the problem at once and take immediate and effective steps to put matters right. Others only recognise the problem when it is set out in a call-up letter and begin to put matters right in the period before the Public Inquiry takes place. A third group leave it even later and come to the Public Inquiry with promises of action in the future. A fourth group bury their heads in the sand and wait to be told what to do during the Public Inquiry. It will be for the Head of the TRU to assess the position on the facts of each individual case. However it seems clear that prompt and effective action is likely to be given greater weight than untested promises to put matters right in the future.’
‘There is a right of appeal to the Upper Tribunal against decisions by the Head of the TRU in the circumstances set out in s. 35 of the 2010 Act. Leave to appeal is not required. At the hearing of an appeal the Tribunal is entitled to hear and determine matters of both fact and law. However it is important to remember that the appeal is not the equivalent of a Crown Court hearing an appeal against conviction from a Magistrates Court, where the case, effectively, begins all over again. Instead an appeal hearing will take the form of a review of the material placed before the Head of the TRU, together with a transcript of any public inquiry, which has taken place. For a detailed explanation of the role of the Tribunal when hearing this type of appeal see paragraphs 34-40 of the decision of the Court of Appeal (Civil Division) in Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport[2010] EWCA Civ. 695 . Two other points emerge from these paragraphs. First, the Appellant assumes the burden of showing that the decision under appeal is wrong. Second, in order to succeed the Appellant must show that: “the process of reasoning and the application of the relevant law require the Tribunal to adopt a different view”. The Tribunal sometimes uses the expression “plainly wrong” as a shorthand description of this test.’
‘It is apparent that many of the provisions of the 2010 Act and the Regulations made under that Act are in identical terms to provisions found in theGoods Vehicles (Licensing of Operators) Act 1995 , (“the 1995 Act”), and in the Regulations made under that Act. The 1995 Act and the Regulations made under it, govern the operation of goods vehicles in Great Britain. The provisional conclusion which we draw, (because the point has not been argued), is that this was a deliberate choice on the part of the Northern Ireland Assembly to ensure that there is a common standard for the operation of goods vehicles throughout the United Kingdom. It follows that decisions on the meaning of a section in the 1995 Act or a paragraph in the Regulations, made under that Act, are highly relevant to the interpretation of an identical provision in the Northern Ireland legislation and vice versa.’
‘S2: The other point to make upfront is that this is a hearing at your request, following a letter proposing to revoke the licence; that was back on the 20th March. I need to also bring to the attention the fact that there was a letter issued on 5th September asking for information to be provided by the 20th September; we didn’t receive a response to that letter, that’s a concern that I’ll want to discuss. And then furthermore, there was a callup letter but then that had asked for any other information or any information to support your case to be provided by the 17th October; and again, no response to that. Before we proceed in terms of outlining my main concerns, can I get an understanding of why these important documents from the Department haven’t been responded to. S3: So can I answer this question? S2: No. If you don’t mind, I’ll ask- S5: I got that letter late you see. S2: You got it late? S5: Yeah. S2: You got it late in what sense, sorry? S5: In came late in the post … like not late in the post, someone else must have signed for it. S2: Someone else at your business? S5: No, in the yard. S2: So when did you receive it? S5: I received it last month. S2: So this is the 5th September letter you received last month? S5: Yeah. S2: Okay. So that’s still in September, so how come we still haven’t received a response? S5: It’s October. S2: So this is October; you received it last month? S5: Yeah. S3: Mr Mulhern, if I could just interject at this point, I appreciate obviously it’s for the Operator to respond to that particular question but in response to the letter that we received in September, obviously the company and the Transport Manager had to seek legal advice in relation to it. We have obviously over-shot that particular period in which to find that documentation and appreciate we are to be criticised and rightly so for that. Subsequent to that, since Friday evening past, my office undertaken to forward documentation in soft copy in response to many of the issues that were raised in the September letter; I appreciate that was dropped on you guys very last minute and no doubt you haven’t had an opportunity to even open it or indeed to consider it, but I just thought for the point of the record that information has been made available. Now, in terms of, I’ll obviously come into it later on, Mr Mulhern, to the particular call-up letter. The call-up letter that I have in the particular pack is dated 3rd October, obviously we’ve only come on record on the Friday evening passed. During the course of our consultation on Friday evening a suggestion was made by me that perhaps we may have a legitimate reason to request an adjournment application, given the 21 day deadline had not been complied with by the DRU. We’re certainly not in a position to forward that, we don’t wish to forward that. S2: Sorry, give me that again, sorry. What’s the concern, the date of the call-up letter? S3: The call-up letter received by Registered Post is dated the3rd October 2022 . Now the point I would make is that in order to prepare for the inquiry, the period of time in which to provide is a minimum period of 21 days. My submission on the point is very simply that obviously there won’t have been enough time to prepare adequately, now that doesn’t … it’s by the by in terms of the information that has been requested by the Department, obviously there was a deadline proposed, they had advanced notice of that in the September letter, but it’s merely just a point that the Operator, Transport Manager and the solicitor are here today to deal with the issues they’ve had, and it’s really just to put the point on the record Mr Mulhern, essentially we wish to engage, this is really a means of engaging with the Department on all of the issues that you have and all the concerns that you have, and it was my advice to them that they sought an application in the circumstances for an adjournment – we didn’t wish to do that, we wanted to come and deal with the inquiry. S2: Can I just clarify because I think it’s an important point going forward that if the grounds are there and I want to have a look at the call-up letter just to check the dates and you think there’s an opportunity to call for an adjournment, I’m happy to hear that. What I will say is what I don’t want to be done is be bound by- S3: No. S2: -if things don’t go a certain way I don’t then want to have gone through this process. So, what you’re saying is there’s an issue, there’s a question mark; you’re not asking for an adjournment, we’ll proceed on the basis, okay. Noted, thanks and I’ll certainly look at the dates. S: 21 days was provided which is the statutory period. S2: That’s I think the point Mr Manley is suggesting is that the 21 days hadn’t been reached. S3: The letter is dated 3rd October and obviously we’re on the 24th which is the 21st day. My point is very simply that the letter wouldn’t have been received on time during that 21 day period. The point Mr Mulhern you’re making is look- S2: Are they (inaudible; over-talking 00:09:09)? S3: I don’t believe it has. But I take your point; if it’s an issue of an adjournment we’re suggesting that we’re waiving our right to an adjournment simply to let the inquiry progress. S2: Okay. Thank you. What I propose to do then Mr Manley, is I’ll outline the concerns, there’s a few, replicating largely what’s in the call-up letters, these won’t be things. Can I just ask, when were you engaged by Mr Woods then? S3: We would have been retained on the end of last week, I think it was Friday afternoon was the first opportunity I had to consult with Mr Woods on the matter. S2: I appreciate that puts you under a little bit of pressure also. S3: It did, but- S2: So we’ll work through this as best we can. S3: Absolutely. … We have attempted to the very best of our ability to address a number of the issues which have arisen in the context of the audit process and indeed some of the other fundamental proofs that are required to retain an Operator’s Licence. If I can begin firstly with the financial requirement; again, the Department has now been provided with a series of bank statements which you have had an opportunity to consider in a very brief fashion, but certainly it has shown, or at least the business has shown certainly early signs or health signs of a profitable business.’
‘I am advised that a bundle was provided, electronically, at 17:45 on Friday21 October 2022 , less than one working day before the hearing was due to commence at 14:00 on Monday24 October 2022 . This was issued using 'Drop Box' and could not be accessed by department officials. Regardless, even had the material been accessible, the timeframe was insufficient to allow an assessment of the material provided. I still do not have access to any of the requested records (aside from finance which I will address below) and on account of the timeframe allowed to the operator to provide the material, I do not offer the opportunity to allow a review of these records in advance of completing my decision. … Whilst I am appreciative to Mr Manley for doing his best to assist at the very last hour, I am mindful that this operator was requested to provide this evidence, not within the calling in letter, but in a previous communication dated 05 September - some seven weeks prior to the hearing. It is simply not appropriate for an operator to ignore the clear directions of the Department within its investigations. The 'propose-to-revoke' letter had previously put this operator on notice and it was the operator that requested the public inquiry, as is their right. The explanation that someone else had signed for the letter, and Mr Woods only got it on 05 October carries no weight with me. If true, this was still sufficient time to provide the material before the hearing - but it is one of many occasions where the operator laid the blame elsewhere.’